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MO-1275-I

Document		MO-1275-I


File #		MA-990234-1


Institution/HIC		Niagara Regional Police Services Board


Summary		NATURE OF THE APPEAL: The Niagara Regional Police Services Board (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) from a lawyer representing two clients. The request was for "the information on file with [the Police] as referred to by [a named police officer] in his letter dated December 14, 1998." This letter refers to records obtained from Bell Canada as a result of search warrants issued in 1995 and 1996 to trace telephone calls received by the appellant's clients. The Police granted access in full to the search warrants, and denied access to the two call trace records (dated 1995 and 1996) pursuant to section 14(1) of the Act . The Police relied on the "presumed unjustified invasion of personal privacy" in section 14(3)(b) of the Act in support of the section 14(1) exemption claim. The requester (now the appellant) appealed the decision of the Police. I sent a Notice of Inquiry initially to the Police. Because the records contain the personal information of the appellant's clients, I included section 38(b) of the Act within the scope of the inquiry. After reviewing the representations provided by the Police, I sent the Notice of Inquiry to the appellant, together with the Police representations, in their entirety. The appellant submitted representations. PRELIMINARY MATTERS : Type of request Part I of the Act deals with "Access to Records". Section 4, which is included in Part I, provides individuals with a general right of access to records within the custody or control of institutions, subject to a number of exemptions outlined in sections 6 through 15. One of these exemptions, section 14, requires an institution to refuse to disclose personal information of an individual other than the requester unless one of the exceptions to this mandatory exemption has been established. One of these exceptions is if disclosure would not represent an unjustified invasion of the privacy of the other individual. In other words, unless it is established that disclosure of the other individual's personal information would not be an unjustified invasion of privacy, the institution must deny access to that information. Part II of the Act deals with the "Protection of Personal Privacy". Section 36(1), which is included in Part II, provides individuals with a general right of access to their own personal information, subject to a number of exemptions outlined in section 38. One of these exemptions, section 38(b), permits the institution to refuse to disclose the personal information of an individual other than the requester even if disclosure would represent an unjustified invasion of the privacy of that other individual. In contrast to Part I, if a request is made under Part II for access to one's own personal information, and a responsive record includes the personal information of both the requester and another individual, the institution has discretion to disclose this information, even if to do so would constitute an unjustified invasion of the other individual's personal privacy. In the present case, the Police received a request from a lawyer representing two individuals for records relating to them. In responding to the request, the Police denied access to the records, which appeared to contain the personal information of the individuals, pursuant to section 14(1) of the Act . In other words, the Police treated this as a Part I request. In the Notice of Inquiry, I asked the parties to address the following three questions: Does the request fall under Part I or Part II of the Act ? If a request is submitted by a lawyer on behalf of a client, does this have any bearing on whether the request falls under Part I or Part II of the Act ? If a request is submitted by an agent on behalf of a principal, does this have any bearing on whether the request falls under Part I or Part II of the Act ? Only the Police submitted representations in response to these questions. The representations read as follows: The records at issue are two Bell Canada trace reports. The traces were placed on the telephone lines of the appellants by Bell Canada at the request of the [Police] for the purpose of identifying callers to the appellants' telephone lines. The records were obtained by the police under a Criminal Code Warrant to Search. Naturally, it is presumed, the telephone numbers of the appellants appear on these reports and that, the telephone numbers of the appellants are their personal information. If an argument were to be made that this report contains shared personal information I believe it could be made on this basis and this basis alone. It is doubtful, however, that the appellants are interested in retrieving their own telephone numbers from these reports and I had, therefore, not considered them in making my decision. The remainder of the reports contain information pertaining to the dates and times of calls received on the appellants' phone lines as well as the telephone numbers of the callers to the appellants' phone lines. The Service and Equipment Profile portions of these reports identify the names and addresses of the subscribers to the telephone numbers obtained from the trace reports. The question, then, is whether this information is information which is solely third party information or the shared information of the third parties and the appellants. It seems to me that it is generally the case that where information is shared information it is more or less unseverable and thus the need for the invasion of another individual's personal privacy. I do not think, however, that it can be argued that the personal information of the third parties in these records can be considered the personal information of the appellants .. do not believe that the fact of having called a telephone number necessarily entitles the person being called to the personal information of the caller. (That Bell Canada assumes this to be the case is evidenced by the fact that this information is not publicly available. A caller has, moreover, the option of blocking his or her personal information from being displayed on the line he or she is calling). My belief that this is the case and my decision that this request falls under Part I of the Act was not influenced by the request having been made by the appellants' representative. I don't believe that it has any bearing on whether the request falls under Part I or Part II of the Act . Although I understand the rationale adopted by the Police in responding to the request, in my view, it is incorrect. The approach taken by the Commissioner's office with respect to the analysis of personal information was set out in considerable detail in Order M-352. In that order, former Adjudicator John Higgins reviewed the statutory context under which an analysis of personal information in a record should be made. Following his discussion of the purpose of both the sections 14 and 38 exemptions, the former Adjudicator stated: In order to give effect to the legislature's intention to distinguish between requests for an individual's own personal information and other types of requests, the Commissioner's office has developed an a


Legislation		MFIPPA 14(1) 14(2)(d) 14(3)(b) 38(b) 36(1)


Subject Index		part I vs. part II of the MFIPPA


Signed by		Tom Mitchinson


Published		Feb 16, 2000


Type		Order – Interim


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